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In re Xarelto Rivaroxaban Products Liability Litigation

United States District Court, E.D. Louisiana

May 26, 2017


         SECTION L

          NORTH MAG. JUDGE



         Before the Court are various Motions in Limine filed by Plaintiffs Joseph Orr, Jr., Joseph Orr, III, Kelli Walker, and Kim DeAgano (“Plaintiffs”) and by Defendants Janssen Pharmaceuticals, Inc., Janssen Research & Development, LLC, Janssen Ortho LLC, Johnson & Johnson, Bayer Pharma AG, and Bayer Healthcare Pharmaceuticals Inc. (collectively, “Defendants”). All of the motions are opposed. Having considered the parties' briefs and the applicable law, the Court now issues this order and reasons.

         1) Plaintiffs' MIL No. 11 to Preclude Testimony and Argument About the Personal Use of Anticoagulants Including Xarelto by Defendants' Experts, Employees, and/or Family Members, or, in the Alternative, to Compel the Production of Relevant Medical Records and/or Medical Authorizations [R. Doc. 6445]

         Defendants have demonstrated their intention to introduce at trial testimony about the anticoagulant use (including Xarelto) and the associated medical treatment and condition of their employees including Dr. Theodore Spiro and Dr. Peter Dibattiste, as well as the family members of certain employees including Dr. Spiro's wife, Dr. Gary Peters' wife, Nauman Shah's mother, and Susan Geiger's father.

         Plaintiffs move for an order prohibiting all witnesses and counsel from commenting on, referring to, attempting to introduce testimony or evidence about, or introducing testimony or evidence about the personal use of anticoagulants, including Xarelto, by any party's family members, employees, experts, or witnesses. Plaintiffs argue such testimony is irrelevant and that any probative value is substantially outweighed by the danger of unfair prejudice, confusion, and misleading the jury.

         Alternatively, if the Court is inclined to allow such evidence, as it did during the Boudreaux trial[1] when Dr. Gary Peters testified about his wife's use of Xarelto and Nauman Shah testified by video that his mother once took Xarelto, Plaintiffs request that the Defendants be compelled to produce the medical records and/or medical authorizations necessary to retrieve the relevant records of any witness whose anticoagulant use is made at issue.

         Defendants oppose the Motion, arguing that Plaintiffs seek an unfettered license to suggest, without fear of rebuttal, that Defendants-and by extension their employees-lacked sufficient concern for the well-being of patients who use Xarelto and that Defendants' experts engage in practices inconsistent with their stated opinions. (R. Doc. 6531). They argue there is no basis to invade those witnesses' privacy by making them produce medical records. They point to the fact that this court sustained essentially the same motion with regards to the Boudreaux bellwether except with regards to witnesses and experts, in which case the court reserved ruling until trial, as the issue may go to credibility. Defendants argue the ruling should be the same in this case because Xarelto use may go to a witness's credibility, and Plaintiffs are not entitled to the witnesses' or their families' medical records.

         Plaintiffs file a reply, arguing that if the Court allows testimony about personal use of Xarelto because it is relevant to witnesses' credibility, the Plaintiffs should also be allowed to introduce testimony about the extent to which Defense executives or employee witnesses hold financial stakes in Defendants' companies. (R. Doc. 6546). Plaintiffs argue financial stake evidence is relevant to credibility and bias. They contend that if Defendants are permitted to introduce evidence that their witnesses' relatives are using Xarelto because this allegedly bolsters their credibility in defending the product, then Plaintiffs should be allowed to explore all other reasons why the witness would be defending the product, including financial incentives enjoyed through that product promotion.

         This Court SUSTAINS this Motion. If one of Defendants' witnesses intends to discuss or refer to a family member's use of Xarelto, he or she must first produce all of the medical records of that family member to allow for cross examination. Each person who takes Xarelto is different, and the circumstances are different. In fairness, there ought to be some testing of the specific circumstances of that person if the Defendants wish to bring up this issue at trial. Accordingly, Defendants will not be permitted to elicit information about a witness' family member taking Xarelto without producing their medical records.

         2) Plaintiffs' MIL No. 25 Regarding References to Fiction Allegedly Authored by Dr. Suzanne Parisian [R. Doc. 6468]

         Plaintiffs move for an order prohibiting counsel for Defendants from commenting on, referring to, introducing testimony or evidence regarding, attempting to elicit testimony of, or arguing, whether directly or indirectly, and whether at voir dire or during trial, any argument or reference to fictional literature allegedly authored by Suzanne Parisian, M.D. At trial, Defendants may attempt to use a fictional book Dr. Parisian wrote under a pseudonym - and to which the publisher made significant changes - to show “bad” character of Dr. Parisian for authoring a book that may be described as “pornographic” or as “smut.” Plaintiffs argue the evidence is irrelevant and constitutes improper character impeachment. Further, they argue the evidence is unduly prejudicial, will waste time, cause undue delay, and will confuse the jury.

         Defendants oppose the motion, arguing that it is undisputed that Dr. Parisian wrote this book; she admitted to doing so during numerous depositions. (R. Doc. 6548). Defendants clarify that they do not intend to use this book at trial, but argue it may be relevant to her judgment and credibility. If they do intend to discuss the book, Defendants aver they will approach the bench at that time.

         This Court DENIES this Motion. Any expert witness is subject to a credibility challenge. When they testify in Court, they put their entire record on view.

         3) Plaintiff's MIL No. 31 Regarding Homeopathic Treatments and Use of Supplements [R. Doc. 6469]

         Plaintiffs move for an order prohibiting all witnesses and counsel from commenting on, referring to, attempting to introduce testimony or evidence about, or introducing testimony or evidence about, (1) Sharyn Orr's and Kimberly Orr DeAgano's homeopathic treatments; (2) Sharyn Orr's and Kimberly Orr DeAgano's use of supplements, other than those containing curcumin or ginger; and/or (3) issues pertaining to the license of Dr. Rai, Plaintiffs' homeopathic treating physician. Plaintiffs argue such evidence is irrelevant and unduly prejudicial.

         Defendants oppose the Motion. (R. Doc. 6554). They point out that one of the homeopathic substances used by Mrs. Orr is known to be an anti-coagulant and cause bleeding - an issue relevant to this trial. They also aver that the Court declined a similar motion in the Boudreaux trial and reserved its ruling for trial. Defendants argue Mrs. Orr's other remedies and homeopathic treatments are relevant and should be presented to the jury. Further, they contend that Dr. Rai's board certification and license are relevant and admissible if Plaintiffs open the door to this evidence. Dr. Rai was subject to disciplinary action because she failed to properly monitor a patient on prescription drugs. For that reason, Defendants contend that if Plaintiffs assert she was responsible and properly maintained Mrs. Orr's treatment, this issue is admissible for cross-examination.

         One of Plaintiffs' theories in this case is that Xarelto caused Mrs. Orr's brain hemorrhage. Accordingly, it is relevant if Mrs. Orr was also taking something else that may cause or increase risk of bleeding. For that reason, Plaintiffs' Motion is denied in part, with the Court reserving its ruling on the issue of Dr. Rai's board certification and license for trial. Accordingly, Plaintiffs' Motion is DENIED in part and RESERVED in part.

         4) Plaintiffs' MIL No. 32 Concerning Unrelated ...

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